Lindara Mudiyanselage (Migration)

Lindara Mudiyanselage (Migration) [2024] AATA 2785 (25 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Upali Premathilake Lindara Mudiyanselage
VISA APPLICANT:  Miss Anjali Umeshika Lindara Mudiyanselage
REPRESENTATIVE:  Mrs Dishni Yasamana (MARN: 1575517)
CASE NUMBER:  1930221
HOME AFFAIRS REFERENCE(S):          OSF2018/008404
MEMBER:James Lambie
DATE:25 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

Statement made on 25 July 2024 at 12:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – false or misleading information – full-time course of study – education transcripts – verification by recognition bodies – compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 101.213, 101.223; Schedule 4, Public Interest Criteria 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 27 June 2018. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet the criteria of Public Interest Criteria 4020 in that she had provided false or misleading information in respect of her full-time study program.
The review applicant (Mr Upali) appeared before the Tribunal on 31 May 2024 and 5 July 2024 to give evidence and present arguments.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The visa applicant (Ms Lindara) is a Sri Lankan citizen. She applied for a Child (Migrant) (subclass AH 101) visa on the basis that she was the child of Mr Upali, who is an Australian citizen. Ms Lindara was born on 15 July 1994, and was therefore 24 years old at the time of the lodgement of the application. For the purposes of sub clause 101.213(1)(c) of Schedule 2 to the Regulations, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, she was required to have been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
In support of the visa application, Ms Lindara submitted a letter dated 24 September 2018 from Amazon College in Colombo which stated that she had completed a diploma program in Business Management. She claimed to have been enrolled in a Diploma in Finance Management at the same institution. Offices of the Department undertook enquiries of Amazon College which indicated that the institution did not offer a diploma of Business Management, did not offer any full-time courses, was not, contrary to its written claims, affiliated with a number of overseas educational institutions, and was not recognised by the Sri Lanka Tertiary and Vocational Education Commission (TVEC) and was therefore not eligible to confer academic qualifications. These matters, and other information relating to the college disclosed by the Department’s inquiries, were put to the applicant in a letter dated 22 March 2019 but no substantive response was received. Accordingly, the delegate refused the visa application on the basis that Ms Lindara did not meet the criteria of subclause 101.213(1)(c) and also did not meet subclause 101.223 by reason of the submission of false or misleading information regarding her claimed full-time study program.
Mr Upali applied to the Tribunal for a review of the delegate’s decision on 24 October 2019. With the application, the following material was submitted:
·Ms Lindara’s affidavit affirmed 23 October 2019;
·Amazon College program transcript, dated 15 December 2018;
·Mr Upali’s statutory declaration, dated 3 August 2019;
·Amazon College program transcript, dated 28 August 2019;
·Amazon College certificate of completion issued to Ms Lindara, dated 15 December 2018;
·letter from Mr Irham Marikar, director, Amazon College, dated 10 April 2019, enclosing:
oletter from UK Skills Awards, dated 1 June 2017;
oletter from On Sky Global Inc, dated 6 September 2018;
oregistration notice from the Sri Lanka TVEC, dated 7 June 2019; and
otaxpayer identification certificate, Sri Lanka Inland Revenue Department, dated 6 April 2018;
·receipts issued to Ms Lindara by the National Institute of Business Management (NIBM), dated 6 October 2019 and 9 October 2019;
·letter from Dr Sarath Karunaratne, Wellington Point Family Practice, dated 22 October 2019; and
·submissions by the applicants’ representatives, dated 24 October 2019.
Relevantly to this application, the Tribunal notes the following:
(1)the representatives’ submissions were that the information upon which the Department had relied was provided deceitfully and in bad faith, and that Ms Lindara was properly enrolled full-time for an accredited and recognised course of study;
(2)Ms Lindara’s affidavit is to similar effect; and
(3)The letter from the director of Amazon College disputes the findings of the delegate, seeks to confirm that the Diploma in Business Management has been offered on a full-time basis since 2013, and claims that the course is recognised by international accreditation bodies, enclosing the letters from UK Skills Awards and On Sky Global as evidence.
The Tribunal’s review of the Amazon College material raised concerns that the letters provided as evidence for the director’s claims might not be genuine. It noted that the letterhead of the UK Skills Awards gave an address (469 Katharine [sic] Road, London, E7) did not appear to be genuine. This concern was confirmed by a comparison with the UK Skills Awards website and a Google Maps Streetview search of the purported address in the letter. The letter from On Sky Global, purportedly based in Delaware, USA, does not employ standard English throughout and does not contain any of the expected information in its letterhead. Accordingly, the Tribunal wrote to the applicant on 24 April 2024 indicating that it was concerned about the genuineness of the documents and inviting his comments on the provenance and veracity of them by 8 May 2024.
On 9 May 2024, the applicants’ representatives emailed the Tribunal attaching an undated and unsigned letter from Ms Lindara, a letter from the NIBM dated 2 May 2024, and a letter from the director of Amazon College, dated 8 May 2024.
The letter from Ms Lindara states, relevantly:
Firstly, I would like to address the concerns raised regarding the documents from Amazon College, On Sky Global, and the UK Skills Awards. We have diligently followed up with Amazon College to obtain the necessary confirmation of the diploma course completed by [Ms Lindara]. However, Amazon College has informed us that they are unable to provide additional confidential documents beyond what has already been submitted. They have assured us that they have already provided all necessary information and advised the embassy to verify the information with On Sky Global. Moreover, Amazon College has agreed to furnish a letter confirming the details by May 8, 2024.
The letter from Amazon College states, relevantly:
Firstly, we would like to affirm that our institution, Amazon College, is a private higher education college registered with the tertiary and vocational education commission (TVEC) in Sri Lanka, under registration number P01/0854 …
Over the years, we had collaborated with various awarding bodies, including UK Skills and On Sky Global USA, among others. However, due to their poor service and changes in our affiliations, we have ceased working with these bodies …

Furthermore, it is important to note that, being registered in Sri Lanka and in TVEC, we are authorised to issue certificates to our successful students in compliance with the local regulations.
Regarding the certificate issued to [Ms Lindara], we acknowledge that the recognition bodies mentioned therein are not currently valid, as we no longer collaborate with them. We apologise for any confusion this may have caused.
The Tribunal notes that, despite the director’s claims, the UK Skills Awards logo remained displayed on the Amazon College letterhead.
On 30 May 2024, the representatives made further submissions relating to Mr Upali’s previous nondisclosure of his marriage and children when he first entered Australia and enclosing a Sri Lankan marriage certificate and a birth certificate. These are not material to the decision under review.
Mr Upali appeared before the Tribunal to give evidence on 31 May 2024. After dispensing with the hearing preliminaries, the Tribunal, pursuant to s 359AA of the Act, provided Mr Upali with a screenshot from Google Maps Streetview of 469 Katherine Road, London, E7 and of the TVEC online entry for Amazon College. It noted that the address given in the UK Skills Award letter corresponds (spelling error aside) with the premises of Saiyed & Co Ltd, certified practising accountants, in suburban East London and that the genuine address for UK Skills Awards is Hatton Garden in the City of London. On that basis, it considered the UK Skills Award letter to be a bogus document. It observed that the TVEC entry for Amazon College records that the only full-time registered courses offered are Certificate for Care Giver, Certificate for Child Care Centre Operations and Diploma in Montessori and Early Childhood Education. A Diploma in Psychology and Counselling is registered for part-time enrolment. There is no current registered or accredited course in Finance Management or Business Management, although there was a part-time Certificate in Business Administration, which was registered from June 2019 to October 2021 and which did not correspond in time or nomenclature to Ms Lindara’s claimed course of study. On that basis, the Tribunal said that it considered it likely that the Amazon College letters of 10 April 2019 and 8 May 2024 contained false or misleading information. It further advised that its inquiries indicated that the street address given at the website for On Sky Global did not exist and that, on the face of the letter provided to the Tribunal, it considered it likely to be a bogus document. It told Mr Upali that this information, if relied upon, may form the reason, or part of the reason, for affirming the decision under review. The Tribunal further noted that it may have reason to doubt the veracity of the material he had provided from the NIBM, although its initial assessment was that it was probably not material to the current application. The Tribunal adjourned the matter to a later date in order for Mr Upali to consider this information and obtain advice.
On 2 July 2024, the applicants’ representatives emailed the Tribunal, attaching the following:
·submissions dated 1 July 2024;
·an email from RAK Ranawaka, director of the School of Business, NIBM, dated 19 June 2024;
·a letter from Mr Ranawaka, concerning Ms Lindara’s enrolment, dated 25 June 2024;
·Mr Upali’s marriage certificate, dated 29 March 1990; and
·Mr Upali’s birth certificate dated 12 July 1973.
The submissions included, relevantly:
Despite several enquiries, the Amazon College was not able to provide any clarification due to the changes taken place over the management. It is so obvious that the applicant had become a victim of a disorganised and a corruptive private tertiary educational system that prevails in Sri Lanka [sic].
The submissions also traverse some of the concerns the Tribunal raised at the hearing about the material from the NIBM and the matter of Mr Upali’s nondisclosure of his marital status in his previous visa application.
The hearing resumed on 5 July 2024. The applicants’ representative was unable to attend. The Tribunal asked if Mr Upali wished to make any further submissions in relation to the documents and information provided in support of Ms Lindara’s claims to have been in full-time education at the time of making the visa application. He said he did not. The hearing then proceeded to discuss his evidence and submissions in relation to the existence of compassionate and compelling circumstances, discussed further below.
Having considered all of the material, the Tribunal is of the view that the documents said to originate from Amazon College in support of Ms Lindara’s claims to have been engaged in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification contain information that is false or misleading in a material particular as defined in PIC 4020(5), in that:
·Amazon College did not provide a full-time course of study in the course or courses in which Ms Lindara claimed to have been enrolled; and
·the course or courses in which Ms Lindara claimed to have been enrolled did not have the registration or accreditation they were claimed to have.
The applicants’ representatives, in their submissions of 2 July 2024, seem to accept that Amazon College was engaged in fraudulent conduct. However, this submission was only made after the Tribunal confronted Mr Upali with evidence that the material supplied in support of Amazon College’s claims could not be genuine. Up to that time, there was a robust insistence that the Department had been maliciously misled as to the credentials and bona fides of the institution.
On the basis of the evidence before it, the Tribunal is satisfied that the purported enrolment records and certificates of completion from Amazon College contain information that was false and misleading at the time it was given, and was relevant to the criteria the Minister may consider when making a decision on the application, namely, whether the course of study was full-time and could genuinely lead to the award of a professional, trade or vocational qualification for the purposes of subclause 101.213(1)(c).
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
Mr Upali’s submissions as to the existence of compassionate and compelling circumstances are essentially that:
·he and Ms Lindara were the innocent dupes of fraudulent conduct by Amazon College;
·they were the victims of the incompetence of his previous representatives who failed to disclose his marital and family details in his 1999 visa application; and
·owing to the state of his health, the grant of the visa was the only realistic prospect for him to have contact with his daughter.
It was not argued that there were any compelling circumstances that compel the interests of Australia. It is therefore necessary for the Tribunal to be satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen who is, for this application, Mr Upali.

The Tribunal cannot be satisfied that Ms Lindara was the innocent dupe of fraudulent conduct by Amazon College. On the basis of the information obtained by the department and disclosed to the applicants, the Tribunal cannot accept that Amazon College ever offered a full-time course of study, or that Ms Lindara could have believed that she was ever engaged in a full-time course of study. Despite the Department’s repeated requests for supporting material, Ms Lindara did not provide anything in the nature of independent evidence and the material available to the Tribunal is strongly suggestive that Amazon College operates chiefly as a diploma mill. The Tribunal would be unwilling to accept any evidence from Amazon College that was not externally verified.
While the matter of Mr Upali’s marital and family details may have raised significant queries were this matter to be remitted to the Department for further consideration, these are not matters directly in issue on this application and it is unnecessary to consider them further.
The medical evidence provided by Mr Upali dates no later than October 2019. When queried, he accepted that there was no more current evidence available. He volunteered at the hearing that he had undertaken international travel twice since 2019, in April 2022 and June 2024. He accepted that he did not suffer from any condition that prevented or militated against international travel.
On the basis of the material before it, the Tribunal does not have any evidence that would suggest the existence of compassionate and compelling circumstances affecting Mr Upali’s interests. While the Tribunal accepts that he would prefer to have his daughter living in the same country, the refusal of the visa does not affect his capacity to visit her from time to time and there is no suggestion that her presence or assistance is a psychological or medical necessity.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the visa applicant does not satisfy PIC 4020 for the purposes of cl 101.223. For the reasons discussed above, Ms Lindara also cannot meet the criteria of subclause 101.213(1)(c).
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.
James Lambie
Senior Member
ATTACHMENT – EXTRACT FROM MIGRATION REGULATIONS 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
ATTACHMENT – Extract from Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2024] AATA 2785

25 July 2024

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice